By Paul Ade-Adeleye
On March 29, President Muhammadu Buhari addressed Nigerians for the first time on the COVID-19 epidemic. Among other things, he declared a “cessation of all movements in Lagos and the FCT for an initial period of 14 days with effect from 11pm on Monday, March 30, 2020.”
He subsequently directed that the cessation would apply to Ogun State “due to its close proximity to Lagos and the high traffic between both states”. Media outlets and individuals referring to the declaration above, with no objection from the presidency, have used the term “lockdown”.
The word has therefore enjoyed national popularity, notwithstanding its original meaning of confining prisoners to their cells to address an emergency.
Importantly, debates have sprung up concerning the legality and constitutionality of the president’s lockdown order. Professor Wole Soyinka, for his part, alluded to absenteeism and asked the presidency to provide a legal basis for the declaration of a lockdown.
He noted that there was no legal premise for the lockdown order, taking care to mention that the focus of the order was not to be faulted since it was to save lives and preserve communities.
The Nobel Laureate said, “constitutional lawyers and our elected representatives should kindly step into this and educate us, mere lay minds.
The worst development I can conceive is to have a situation where rational measures for the containment of the Corona pandemic are rejected on account of their questionable genesis.
This is a time for Unity of Purpose, not nitpicking dissensions. So, before this becomes a habit, a question: does President Buhari have the powers to close down state borders? We want clear answers. We are not in a war emergency.
Appropriately focused on measures for the saving lives, and committed to making sacrifices for the preservation of our communities, we should nonetheless remain alert to any encroachment on constitutionally demarcated powers. We need to exercise collective vigilance, and not compromise the future by submitting to interventions that are not backed by law and constitution.”
Meanwhile, human rights activist, Ebun-Olu Adegboruwa noted that the Quarantine Act of 1926 has no provision for restricting movement of citizens. His legal authority was Section 41 of the 1999 Constitution, which legitimises the freedom of movement of all citizens as a fundamental human right.
An executive proclamation or regulation is therefore inferior in nature to the constitution, especially as Section 1 (3) of the constitution exerts the supremacy of the constitution over any other law in the event of inconsistencies.
That other law, the constitution declares, shall be void to the extent of its inconsistency. He therefore declared that the Quarantine Act of 1926 was not enough to restrict freedom of movement.
Adegboruwa insists that, “Laws purporting to infringe upon or derogate from the fundamental rights of citizens must be express, explicit, unambiguous and not subject to personal considerations and permutations, to prevent abuse.”
He adds: “The Quarantine Act does not contain any provision expressly authorizing the restriction of movement of citizens and such power must not and cannot be assumed by the president. For the president to seek to restrict the movement of citizens, he must act under a law that expressly permits him to so do, not by implication, as he has purported to do under the Quarantine Act.
In a proper federation, it is inappropriate for a president to take over the affairs of any state within the federation, without the input of the governor and the House of Assembly of that state.”
However, government agents have argued that the senior advocate seemed to have overlooked the extents of the provisions of Section 45 of the Constitution, to wit that “nothing in Sections 37, 38, 39, 40 and 41 of this constitution shall invalidate any law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health”.
Is the Quarantine Act justifiable in a democratic society?
The Vice-President and the Attorney General of the Federation (AGF) severally responded by pointing to the erstwhile reclusive Quarantine Act. Section 45, as quoted above, along with Sections 5, 14 and 20 of the Constitution and the Quarantine Act formed the bulk of the Attorney General’s objections to Adegboruwa’s stance. He also moved to note that the president did not activate a state of emergency as he is empowered to do by virtue of Section 305 of the constitution.
Why he would shoot himself thoroughly in the foot in his defence of the president, by highlighting a shortcoming of the president, remains mind-boggling, for the president should have activated the State of Emergency provision in the constitution to avoid the national confusion his address has occasioned.
Section 3 of the Quarantine Act provides that “The President may, by notice, declare any place whether within or without Nigeria to be an infected local area and thereupon such place shall be an infected local area within the meaning of this Act.” Additionally, the vice president noted that the Quarantine Act empowers the president to make regulations during a quarantine.
He, no doubt, referred to Section 4 (d) & (e), which clearly states that the president is empowered to make regulations for preventing the spread of any dangerous infectious disease from any place within Nigeria, whether an infected local area or not, to any other place within Nigeria.
These powers include for preventing the transmission of any dangerous infectious disease from Nigeria or from any place within Nigeria, whether an infected local area or not, to any place without Nigeria.
There is therefore, without doubt, provision for the president to declare, by notice, an area as an “infected local area”. The president did not do that in his address. Until he delivered the address of March 29, he had displayed excellent mimicry of Rip van Winkle and maintained stoic silence – a move his media adviser had previously used as an avenue to lecture whomever had a minute on stylistics, pro bono.
The issue then is the manner and style the president employed to announce the lockdown. The law is silent on procedures the president must follow to quarantine an infected local area. It suggests that the president may, by notice, declare an area infected.
The method of giving this notice is apparently left to the discretion of the president and President Buhari chose to shun the advice proffered by the act that he may by notice declare an area as an infected local area.
Having maintained what the now academic Femi Adesina can only describe as a stylistic silence, the president, without notice, ordered the lockdown of Lagos and Ogun States, as well as the Federal Capital Territory.
It was only after announcing that lockdown that he signed the lockdown regulations, pursuant to the provisions of Sections 2, 3, 4 of the Quarantine Act.
It may have been more prudent to act in reverse order.
The president outlined a few vague, loan-centred palliatives to mitigate the discomfort occasioned by the lockdown. Where Lagos State had previously made regulations to reduce movements and provide for 200,000 low-income homes, the presidency’s lockdown order, although seemingly and statutorily valid and in agreement with extant laws, is at best grating on the federal spirit of the country.
The tone of the president’s address suggests that the governors of the affected states had been ‘notified’ rather than ‘consulted’ on the issue, a la unitary governments. It is left to the imagination whether a better call could not have been made had the president practiced inclusive consultation before springing into action.
Has the president not, by trying to prevent the spread of the disease, subjected people to the clammy grip of hunger and the lusty temptation of crime?
The objective of the lockdown order, which is to check the unbridled stride of the coronavirus, cannot be disputed.
The laws that grant validity to the president’s declaration seem to hold some water, but why does it still appear that the president has not done the right thing? Perhaps, Femi Adesina should be delivering his stylistics lectures not to the people of Nigeria, but to the President of Nigeria, in whose employ he is currently occupied.
- Ade-Adeleye writes from Lagos.
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